Motions Which Have Been Researched, Drafted and Filed by the Cessna Law Office and Which Have Helped Win the Case

Below is a "Motion For Sanctions":

COMES NOW, the Defendant, (Anonymous Client), by and through the Law Office of Christopher Hunter Cessna, LLC, and through his attorney, hereby moves this Honorable Court pursuant to Rule 16 of the Colorado Rules of Criminal Procedure, and requests dismissal of this case with prejudice, or in the alternative, suppression of evidence - and in support of this Motion for Sanctions the Defendant states as follows:

FACTUAL BACKGROUND

1. This case is set for jury trial on XXXX;

2. The Defense is still waiting for possibly exculpatory information that was subpoenaed on May 9, 200X, and has yet to be made available to the Accused;

3. A return date of May 8, 200X was originally set for previously subpoenaed documents. The subpoena duces tecum (SDT) was properly served on XXXX Police Officer XXXX well in advance of May 8;

4. Officer XXXX failed to honor the SDT and appear in court with the requested documents on May 8. As a result, the Court set a show cause hearing;

5. At some point shortly after May 8, and in response to undersigned counsel’s inquiries, personnel at the XXXX Police Department assured counsel that Officer XXXX had in fact appeared in court with the subpoenaed documents. As a result of this assurance and that the police department would get those documents to counsel, undersigned counsel asked the Court to vacate the show cause hearing;

6. In the interim, undersigned counsel’s paralegal has made numerous attempts to locate and acquire the subpoenaed documents;

7. On May 30, counsel’s office received a notice of additional discovery dated May 24, 200X from the DA’s office. This notice advised that documents matching the description of those previously subpoenaed were now available for pick-up;

8. On June 13, undersigned counsel’s runner arrived for the pre-scheduled appointment and paid $3.60 for the 24 pages made available to her. These were not the documents requested in the SDT;

9. On July 30, as a result of still not having the subpoenaed documents, counsel’s paralegal contacted the custodian of records for the XXXX Police Department to follow up on the subpoenaed documents. The custodian said that she was not involved with the fulfillment of the subpoena and that Sergeant XXXX was the one to fulfill the subpoena. She said Sergeant XXXX would not be back from vacation until August 13, 200X. According to the custodian, she made numerous attempts to locate the documents within her own department and was unable to locate them;

10. The Custodian of the XXXX Police Department said that according to another administrative staffer, the documents were delivered to the district attorney’s office;

11. On August 2, upon the urging of the XXXX Police Department’s Custodian of Records, counsel’s paralegal called the Assistant to the District Attorney, XXXX and left a voicemail in an attempt to locate the documents. No one ever returned our call;

12. On August 9, counsel’s paralegal called the DA’s discovery unit in an attempt to locate the documents. “XXXX,” in discovery said that she had never seen the documents, nor did she have any knowledge of the documents. She then transferred counsel’s paralegal to another employee’s voicemail. Counsel’s paralegal left a voicemail message for the administrator, but never received a return call;

13. On August 13, counsel’s paralegal then called Sergeant XXXX in a continuing effort to locate the subpoenaed documents. Sergeant XXXX said that he did not know where the documents were, and that another officer had taken them to the court;

14. On August 14, 2007, Sergeant XXXX then called to advise counsel’s paralegal that he had spoken with DDA, XXXX, and that Ms. XXXX was working on obtaining the documents;

15. On August 14, counsel’s paralegal called and left a voicemail for DDA XXXX regarding the documents;

16. On August 15, DDA XXXX called and spoke with undersigned council. She said that over 779 pages of documents have been waiting for our office since May 8 (when the SDT was returnable). Undersigned counsel informed the DDA that discovery has never made those documents available to our office. The DDA claimed that her office had made numerous calls to our office and sent multiple letters to our office regarding the docuemtns. She said that we were welcome to come by and pick up the documents;

17. On August 15, in response to DDA XXXX’s invitation to come get the documents, counsel’s paralegal called the discovery office to determine if the documents would be available for pick-up. Once again, XXXX from discovery said that she did not have the documents and would have to get them from the DDA;

18. On August 16, (basically, the “eve” of trial), XXXX from the discovery unit called and advised that they now had the 779 pages of documents and said that the only time available for our office to come copy the documents was at 3:00 pm. She informed counsel’s paralegal that the DA had a note specifically saying that our office was only allowed to copy these documents for a fee and not pick them up;

19. Due to the short-notice and other time commitments, no one from this office was available to pick up the 779 pages of just discovered material on the same day this office was notified that they were finally available;

20. Since counsel had already sent the XXXX Police Department a check for $224.00 in response to their invoice for the 779 pages originally subpoenaed, the Defense feels that it is unreasonable and burdensome to be forced to pay the DA for the same documents a second time;

21. Furthermore, much of the 779 pages of subpoenaed items still need to be mailed to and analyzed by the defense expert as they contain scientific information. This would be impossible to do given that the trial is a mere four days from when the 779 pages were finally made available;

22. Moreover, due to the confusion and lack of due diligence within the DA’s office concerning these documents, including the fact that they were finally made available on the eve of trial, the Defense would respectfully request that the Court impose sanctions upon the prosecution for this ongoing discovery violation.

LEGAL AUTHORITY

23. Pursuant to Rule 16 of the Colorado Rules of Criminal Procedure, the prosecution has a duty to disclose information pertinent to this case. See Rule 16(b)(3) (“The prosecuting attorney shall perform all other obligations under subsection (a)(1) as soon as practicable but not later than thirty days before trial.”); See Also People v. Lee, 18 P.3d 192, 196 (Colo. 2001);

24. Pursuant to Rule 16(b)(4) of the Colorado Rules of Criminal Procedure, “[t]he prosecuting attorney shall ensure that a flow of information is maintained between the various investigative personnel and his office sufficient to place within his possession or control all material and information relevant to the accused and the offense charged;”

25. Pursuant to Rule 16(c)(1) of the Colorado Rules of Criminal Procedure, information “which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to defense counsel;”

26. “Under certain circumstances, the exclusion of evidence or even complete dismissal can be proper remedies to assure compliance with discovery orders.” People v. Lee, 18 P.3d 192, 196 (Colo. 2001);

27. The dual purpose served by imposing sanctions is protecting the integrity of the truth-finding process and deterring discovery-related misconduct. Id.

28. A court may consider certain factors in fashioning the appropriate sanction including (1) the reason for the delay in providing the discovery; (2) any prejudice a party has suffered as a result of a delay; and (3) the feasibility of curing such prejudice by way of a continuance or recess in situations where the jury has been sworn and the trial has begun. Id.

29. If a discovery violation is found, whether a sanction is imposed is within the sound discretion of the trial court. Id.

30. Defendant is requesting a sanction because this matter cannot be resolved without the knowledge of what evidence the prosecution does or does not have. Defendant has been prejudiced in that several months have passed with no discovery;

31. “A defendant requesting a dismissal of a case must demonstrate that the prosecution's failure to provide timely discovery has prejudiced him.” See People v. Hernandez, 829 P.2d 394, 398 (Colo.App. 1991);

32. The prosecution may argue that the documents subpoenaed is in the possession and control of the XXXX Police Department, and, therefore, they should have provided it if they have it. The prosecutor’s argument fails in that knowledge of pertinent discovery is imputed to the district attorney handling the case. Furthermore, according to the DDA, the DA’s office was in actual possession of these documents for what appears to be months before the current trial date. See People v. District Court of the Second Judicial Dist., 664 P.2d 247, 252 (Colo. 1983)(Knowledge of the existence of a fingerprint card identifying the defendant was imputed to the district attorney by the terms of the discovery order itself and as a matter of law);

REMEDY REQUESTED

33. As a remedy, the Defendant would assert that the violation of the discovery rules by the District Attorney’s Office is severe enough that a dismissal of this case with prejudice would hopefully ensure a modification of the prosecution’s discovery practices such that violations do not occur in the future;

34. In the alternative, the Defendant would request that evidence which is found within these 779 pages of documents, including evidence of the roadside sobriety tests and the subsequent breath test be suppressed;

35. If neither of these remedies is found to be just by the Court, then the Defense would at minimum request that a continuance of the trial be granted and attributed to the prosecution in order to protect the Defendant’s speedy trial rights.

WHEREFORE, the Defendant respectfully requests this Honorable Court for an Order sanctioning the prosecution in this matter.

Dated this 17th day of August, 200X. Respectfully submitted,

_______________________________
Christopher H. Cessna, #31702
Attorney for Defendant

Below is a "Motion to Dismiss":

MOTION TO DISMISS DUE TO OUTRAGEOUS CONDUCT OF STATE PARK RANGERS

COMES NOW, the Defendant, Client XXX, by and through the Law Office of Christopher Hunter Cessna, LLC., and through his attorney, Christopher Hunter Cessna, and moves this Honorable Court for an Order dismissing this case with prejudice due to the outrageous conduct of state park rangers. In the alternative, and as a lesser remedy, all statements, observations and evidence obtained must be suppressed as tainted by the illegal action of state park rangers due to violations of Article II, Section 25 of the Colorado Constitution and the Due Process Clause contained in the Fifth and Fourteenth Amendments to the Constitution of the United States. As grounds therefore, the Defendant states as follows:

FACTUAL BACKGROUND

Cherry Creek State Park

1. On July 10, 200X at approximately 22:15 hours, an anonymous informant called 911 and reported that a “white boat with a maroon stripe across the middle” had come near the dam at a high rate of speed, right near where this informant was fishing. This anonymous informant told dispatch that as a result, he engaged the occupants of this boat in a verbal altercation. He further advised 911 that he believed that the boat’s prop had hit a submerged rock during this interlude and that the occupants might be intoxicated.

2. State Park Ranger, ABC subsequently met with this anonymous informant. The informant admitted to Ranger ABC that he could not identify who was operating the boat (who was at the “helm”), nor could he identify the boat’s other occupants.

3. During this interview, Ranger ABC failed to obtain any identification, or re-contact information from this anonymous informant.

4. At 22:45, Rangers ABC and XYZ arrived at the west boat ramp with two Arapahoe County Sheriff’s Deputies to try and contact the occupants of this white and maroon boat. All four law enforcement officers were wearing fully identifiable law enforcement uniforms, defensive equipment and service weapons. Each officer arrived in fully equipped and marked law enforcement vehicle.

5. Upon arriving, both rangers observed an individual, later identified as (Client’s Friend) backing a red pick-up truck and its trailer into the water in order to trailer a waiting white and maroon boat.

6. Rangers then contacted the occupants of the boat. Rangers approached Mr. Client XXX and began to question him and others about their earlier activities. Ranger XYZ began using a confrontational tone of voice with both Mr. Friend and Mr. Client XXX. Rangers then began issuing orders to Mr. Client XXX about how to get the boat trailered and secured.

7. In an attempt to fully and completely secure the boat, Client XXX went to the driver’s side door of the truck to access the cab portion of the truck where the boat straps where stored.

8. What the police reports and affidavits fail to document is at this time, both rangers began to privately discuss charging Client XXX with a DUI as soon as he opened the door to the truck.

9. As Mr. Client XXX attempted to obtain these straps from the cab of the truck, and knowing that Mr. Client XXX may have been under the influence, Ranger XYZ then ordered Mr. Client XXX to drive the truck approximately 100 feet up the boat ramp.

10. Credible evidence exists to show that Mr. Client XXX had not approached the truck with the “predisposition” or the intent to drive the vehicle or even to be in actual physical control of the vehicle. This would be absurd – especially with four uniformed officer present and standing next to four fully marked and equipped police vehicles. Instead, the evidence will show that the only reason Mr. Client XXX opened the door to the truck was to obtain the tie-down/transom straps which are required to completely secure the boat to the trailer.

11. Client XXX obeyed the order of Ranger XYZ and moved the truck approximately 100 feet on a steep grade while trailering a large boat which he did not have an opportunity to fully secure.

12. After Client XXX exited the truck, Rangers ABC and XYZ began a more detailed investigation of Client XXX in order to obtain additional evidence for a subsequent DUI and BUI conviction. They interrogated Client XXX about how much he’d had to drink and then administered roadside sobriety tests.

13. At the conclusion of their investigation, Ranger ABC placed Client XXX under arrest for both DUI and BUI. Ranger ABC handcuffed and placed Client XXX in the backseat of a locked patrol vehicle.

14. After being handcuffed and placed in a patrol vehicle, Mr. Client XXX was interrogated about the altercation with the fisherman. Mr. Client XXX made statements to officers about this altercation. Mr. Client XXX was never advised of his Miranda rights at any time that evening.

15. Client XXX was then transported to the Arapahoe County Jail, where he agreed to take a breath test. This test was completed at 00:34 hours with a BAC of .097. Client XXX was then charged with DUI, BUI and DUI per se.

CASELAW

16. The U.S. Supreme and Colorado courts have left open the remedy of dismissal for forms of entrapment, dereliction, or condonation of an offense that amount to outrageous conduct by the police. United States v. Russell, 411 U.S. 423, 431-32 (1973); Bailey v. People, 630 P.2d 1062 (Colo.1982). Furthermore, “application of a court’s supervisory powers in dismissing a criminal case may be proper if the government’s conduct has violated fundamental fairness and is shocking to the universal sense of justice.” People v. Auld, 815 P.2d 956, 957 (Colo.App.1991).

17. Citing Russell, the 10th Circuit has announced, "The outrageous conduct defense looks to the government's behavior rather than the state of mind of the defendant. United States v. Mosley, 965 F.2d 906, 909 (10th Cir. 1992). 'When the government's conduct . . . is sufficiently outrageous, the courts will not allow the government to prosecute offenses developed through that conduct.' Id. at 908." United States v. Harris, 997 F.2d 812, 815 (10th Cir. 1992). In footnotes 3 and 4 at pages 816, the 10th Circuit sets out the federal cases that have actually reversed convictions under the outrageous government conduct theory.

18. Misconduct by law enforcement personnel in collecting incriminating evidence may rise to the level of a due process violation when the misconduct is outrageous enough to shock the conscience of the court. United States v. Kennedy, 225 F.3d 1187 (10th Cir. 2000).

19. In People In the Interest of M.N., 761 P.2d 1124, (Colo. 1988), Chief Justice Quinn reasoned in a dissenting opinion:

In contrast to entrapment, which in Colorado is a statutory affirmative defense, § 18-1-709, 8B C.R.S. (1986), the defense of outrageous governmental conduct is constitutional in scope and originates in the principle that the constitutional guarantee of due process of law places limits on the exercise of governmental power in investigating possible criminal activity. If the governmental misconduct reaches a level of outrageousness, then due process of law serves to bar the prosecution of the accused independently of whether the affirmative defense of entrapment might also be applicable if the case were to proceed to trial. This distinction between outrageous governmental conduct and entrapment has been widely recognized by both the federal and state courts, [citations omitted] . . . Thus, while some of the factors appropriate to the entrapment defense might well be relevant in resolving a claim of outrageous governmental conduct, the two defenses are legally distinct.

It bears emphasis that no single factor is determinative of the validity
of a due process claim based on outrageous governmental conduct. Each factor must be viewed in combination with others and in light of the total circumstances of the case. As long as the evidence shows that the government's conduct reached a demonstrable level of outrageousness, and as long as the trial court fairly considered the totality of circumstances in so concluding, the sanction of dismissal should not be overturned on appeal merely because an appellate court might have decided the historical facts of the case differently. See, e.g., Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451, 91 L.Ed.2d 110 (1986).

20. It is no answer to contend that this and similar matters might be remedied administratively through the Colorado Division of Parks or other channels. Law enforcement agencies, including the Colorado State Parks have an incentive due to the Law Enforcement Assistance Fund (LEAF) and other grants to maximize DUI arrests.

21. Only the court, in its role as an independent, but coordinate branch of government, can bring reason and balance to this area of law enforcement. It is imperative that this Honorable Court correct the Colorado State Parks in this instance, and send a message to deter similar police misconduct in the future. Not even the Mothers Against Drunk Driving would condone the conduct of the park rangers in this case.

Park Rangers are Criminally and Legally Accountable as Principals and Parties to a Crime

22. Both Park Rangers are criminally and legally accountable as principals for Mr. Client XXX’s DUI and DUI per se charges due to the fact that they intentionally promoted and facilitated the commission of the DUI and DUI per se by aiding, abetting, and encouraging Mr. Client XXX to drive while intoxicated. C.R.S. 18-1-603.

23. Furthermore, under C.R.S. 42-4-1703, both park rangers are “parties to the crime” of DUI and DUI per se, for aiding and abetting in the commission of Mr. Client XXX’s alleged DUI and DUI per se.

Entrapment

24. The affirmative defense of entrapment is a question of fact. Therefore, the question as to whether there has been entrapment must be resolved by the trier of fact at trial. People In the Interest of M.N., 761 P.2d 1124 (Colo. 1988).

25. However, it is an affirmative defense (to the crime of DUI and DUI per se), that the defendant engaged in the prohibited conduct:

a) because he was induced to do so by a law enforcement officer who was seeking to obtain evidence for the purpose of prosecution, and

b) the methods used to obtain that evidence created a substantial risk that the prohibited acts would be committed by a person who would not have conceived of, or engaged in that conduct without such inducement.

c) Merely providing a person an opportunity to commit an offense is not entrapment, even though representations or inducements calculated to overcome the defendant’s fear of detection are used.

COLJI-CRIM. No. 7:10 (1983); C.R.S. 18-1-709.

26. Other such defenses which may be endorsed by Mr. Client XXX at trial, include:

a) Execution of a Public Duty, C.R.S. 18-1-701;

b) Duress, C.R.S. 18-1-708;

c) Effect of Ignorance or Mistake Upon Culpability, C.R.S. 18-1-504; and

d) Privileged conduct, Nebraska v. Lechti, 367 N.W.2d 138 (Neb.1985)(Nebraska Supreme Court held that defendant could not be convicted where police knew he was intoxicated and yet ordered him to drive, only to arrest him for DUI afterwards. Due to actions of police, the defendant’s conduct was “privileged.”).

27. Although the affirmative defense of entrapment and other such defenses are only available to Mr. Client XXX at trial, Mr. Client XXX should not have to endure the prolonged stress, or the jeopardy of criminal, financial, DMV, and job loss consequences in order to defend himself against the serious and unjust charges which would not have been filed against him but for the outrageous conduct of park rangers.

ARGUMENT

28. Any and all charges against Mr. Client XXX should be dismissed with prejudice due to the outrageous conduct of state park rangers. Because park rangers strongly suspected Mr. Client XXX of being intoxicated, they should have prevented him from even opening the driver-side door to the truck. Instead, rangers waited and watched in order to collect additional evidence. Intentional misconduct by park rangers in attempting to collect additional evidence against Mr. Client XXX (solidifying evidence of Mr. Client XXX as being in “actual physical control”) rises to the level of a due process violation because the misconduct is outrageous enough to shock the universal sense of justice. In fact, the actions of the park rangers is so shocking to the universal sense of justice that not even Mothers Against Drunk Driving would condone the conduct of the park rangers in this case

29. Second, both Park Rangers are criminally and legally accountable as principals for Mr. Client XXX’s DUI and DUI per se, due to the fact that they intentionally promoted and facilitated the commission of the DUI and DUI per se by aiding, abetting, and encouraging Mr. Client XXX to drive while intoxicated. Furthermore, under C.R.S. 42-4-1703, both park rangers are “parties to the crime” of DUI and DUI per se, for aiding and abetting in the commission of Mr. Client XXX’s alleged DUI and DUI per se.

30. Moreover, the affirmative defense of entrapment and other such defenses are only available to Mr. Client XXX at trial. Mr. Client XXX should not have to endure the prolonged stress or the jeopardy of criminal, financial, DMV, and job loss consequences in order to defend himself against the serious and unjust charges which would not have been filed against him but for the outrageous conduct of park rangers.

WHEREFORE, the Defendant respectfully requests this Honorable Court for an Order dismissing all charges with prejudice due to the outrageous conduct of park rangers. In the alternative, and as a lesser remedy, all statements, observations and evidence obtained must be suppressed as tainted by the illegal action of law enforcement officers due to violations of Article II, Section 25 of the Colorado Constitution and the Due Process Clause contained in the Fifth and Fourteenth Amendments to the Constitution of the United States.

Dated this 3th day of January, 200X. Respectfully submitted,
_______________________________
Christopher Hunter Cessna, #31702
Attorney for Defendant